Foreign Correspondent: Australia’s Role at the 11th Assembly of State Parties to the Rome Statute of the International Criminal Court

The 11th Session of Assembly of States Parties for the International Criminal Court took place in The Hague from 14–21 November 2012. At the Assembly, States Parties emphasised their ongoing commitment to join cumulative efforts around the globe to fight against impunity. Acknowledging the importance of this annual gathering, Australia donated to the Trust Fund for Participation (along with Ireland and Poland), which made it possible for 27 delegations from the least developed States to attend the Assembly. At the Assembly, Australia participated in the plenaries on cooperation and complementarity and also played an active role in the governance of the budget process. Australia’s push for improved state cooperation and complementarity at the ICC.

Cooperation was the most significant substantive item on the agenda and many topics discussed revolved around this theme. This was the first Assembly since the detention of the four Court staff members in Zintan, Libya in June and July 2012, which included Australian lawyer Ms Melinda Taylor. While applauding the Court’s substantial achievements over the past decade Mr Sproule, on behalf of CANZ (Canada, Australia and New Zealand), also recognised the ongoing challenges that require enhanced State cooperation:

The detention of four staff members in June brought home the serious risks that Court staff can face when carrying out their duties and the need for appropriate privileges and immunities to be afforded to all those carrying out functions on behalf of the Court. The full cooperation of states is also essential for the enforcement of international arrest warrants. States Parties have an obligation to arrest indicted persons if they arrive on their territory. (General debate, 15 November 2012).

During the plenary session on complementarity, Australia’s representative Dr French, Assistant Secretary, International Legal Branch, Department of Foreign Affairs and Trade, addressed the Assembly on behalf of CANZ, emphasising the efforts undertaken to develop complementarity capacity around the world. This financial year, Australia will provide $314 million to strengthen the rule of law in developing countries and, by 2016 Australia will have trained 14,000 law and justice officials in developing countries.

Australia is also assisting Pacific Island states to strengthen their criminal justice systems by reviewing and reforming criminal justice, policing and proceeds of crime legislation, including through offences mirroring Rome Statute crimes. As Commonwealth Chair in Office, Australia announced that in addition to its development of Rome Statute model implementing legislation, the Commonwealth Secretariat stands ready to provide technical assistance on the ratification and implementation of the Rome Statute. The Secretariat also provides training for legal professionals at the national level on the investigation and prosecution of transnational crimes, and can assist with advising on the legislative and policy framework for the establishment of witness protection programmes.

Funding international justice

In 2012, Mr Cary Scott-Kemmis of Australia acted as the focal point for the Study Group on enhancing the transparency and predictability of the budgetary process. The Study Group on Governance was established by a resolution of the Assembly in 2010 to facilitate a structured dialogue between the States Parties and the Court with a view to strengthening the institutional framework and enhancing the Court’s efficiency and effectiveness.

As the Assembly does not become involved in the Court’s budget process until its final stages, the Study Group enhanced dialogue between States and the Court on the assumptions, objectives and operational priorities that underpin the Court’s budget. The Study Group noted that States Parties needed to be mindful of actions that could place unforeseen demands on the Court's budget. The Study Group emphasised that budgetary concerns and uncertainty at the Court represent potentially serious impediments to the Court’s functions and the Group discussed measures to address these challenges. The Study Group underscored the value in the Court’s proposal to engage an external consultant to assist the Court to undertake a comprehensive structural review of its staff profile, structure and operational requirements.

The Court’s budget for 2013 was agreed by consensus at the Assembly on the basis of recommendations made by the Committee on Budget and Finance, the subsidiary finance body of the Assembly. Swedish budget facilitator, Ambassador Emsgård, negotiated this delicate consensus, overcoming the call of some States – excluding Australia – for a “zero-growth” budget. In fact, the Assembly concluded a day early with the resolutions and budget passed with relative ease, largely due to the early agreement struck on the budget.

The ICC in the next decade

The ICC has had many achievements in its first decade, and will face many more in the next. The new Deputy Prosecutor, Mr James Stewart of Canada – elected at the Assembly over other candidates including Mr Paul Rutledge of Australia – will assist Prosecutor Fatou Bensouda for the next nine years and will undoubtedly shape the Office of the Prosecutor and the work of the Court. Australia will also have many opportunities to play a positive role in the progress of the International Criminal Court’s goal of ending impunity.

The Australian delegation in a break-out session on the Kampala amendments to the Rome Statute revealed that Australia is working on legislation that will incorporate the amendments into Australia’s legal system. The ongoing work of the Study Group on Governance and Australia’s role in facilitating cooperation and understanding is another role played by Australia in assisting the work of the Court. Finally, Australia’s recently acquired membership of the UN Security Council will also provide new avenues for Australia to promote and assist the work of the Court and help to end impunity around the globe.

Chantel Potter, Research Associate with Public International Law & Policy Group, The Hague.